Free Order - District Court of California - California

Case 3:08-cv-02461-WHA

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Filed 06/27/2008

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On May 14, 2008, Petitioner Dale Scott Heineman, a federal prisoner incarcerated at the Federal Correctional Institution in Lompoc, California filed a document entitled, "Petition for Writ of Habeas Corpus by Person in Federal Custody, Pursuant to the `Judiciary Act of February 5th 1867.'" The clerk of the court v. UNITED STATES OF AMERICA, JUDGE WILLIAM H. ALSUP, and CHARLES DAVID HALL, Respondents. / No. C 08-02461 CW DALE SCOTT HEINEMAN, Petitioner, ORDER DESIGNATING CASE AS SECTION 2255 MOTION, DISMISSING CLAIM AGAINST JUDGE ALSUP AND TRANSFERRING MOTION TO SENTENCING COURT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

designated it as a petition for writ of habeas corpus filed by a prisoner incarcerated in state prison. However, this is a petition

filed by a federal prisoner who is moving to have his sentence vacated. Therefore, this should have been designated as a motion

under 28 U.S.C. § 2255 by a federal prisoner challenging his sentence. The clerk of the court is ordered to change the designation of this case to a motion by a federal prisoner under 28 U.S.C. § 2255. Further, the sentencing court must hear a § 2255 motion challenging the sentence it imposed. United States v. Hayman, 342

Case 3:08-cv-02461-WHA

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Filed 06/27/2008

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

U.S. 205, 220-21 (1952) (one of purposes of § 2255 is for sentencing court to hold any required hearing). Petitioner is

challenging the sentence imposed upon him by the Honorable William H. Alsup in criminal case number CR 05-00611 WHA. Petitioner

claims that the Court lacked subject matter jurisdiction over the government's indictment against him and lacked personal jurisdiction over him. Petitioner has named Judge Alsup as a

defendant in his motion. It is not necessary or appropriate to name the sentencing judge as a defendant in a § 2255 motion. the United States. The proper respondent is

Any claim against Judge Alsup is dismissed.

The clerk of the court is ordered to transfer this motion to the Honorable William H. Alsup, the judge who sentenced Petitioner in the case he is challenging. CONCLUSION For the foregoing reasons, any claim against Judge Alsup is dismissed and the clerk of the court is ordered to designate this petition as a motion under 28 U.S.C. § 2255 and to transfer the motion to the Honorable William H. Alsup.

IT IS SO ORDERED.

Dated: 6/27/08 CLAUDIA WILKEN United States District Judge

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Case 3:08-cv-02461-WHA

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Filed 06/27/2008

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DALE SCOTT HEINEMAN,

4 Plaintiff, 5 v. 6 USA et al, 7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Dated: June 27, 2008 Brigid Martin US Dept of Justice, Antitrust Division San Francisco 450 Golden Gate Ave, 10th Floor Room 10-0101, Box 36046 San Francisco, CA 94102 C. David Hall United States Attorney 450 Golden Gate Ave. 11th flr San Francisco, CA 94102 Dale Scott Heineman 12152-081 3600 Guard Rd. Lompoc, CA 93436 /

Case Number: CV08-02461 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on June 27, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk